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100-year-old tree blocks homesite

Owners say city bars them from developing; Neighbors rejoice at saving old tree

Audrey Robbins poses with a sign she has posted on the front of her home on Markland Place in St. Augustine calling on the city commission to save a 100-year-old tree growing on a lot behind her home. By PETER WILLOTT, peter.willott@staugustine.com

An oak tree sits at the entrance to a lot off of Markland Place in St. Augustine. By PETER WILLOTT, peter.willott@staugustine.com

A single live oak off Markland Place downtown has become a point of contention between property owners who want to remove the tree and build a house and Valencia neighborhood residents who want to preserve the 100-year-old tree.

St. Augustine's Planning and Zoning Board and City Commission have denied the owner's requests for a tree removal permit.

But the owners said Saturday that -- despite the tree -- they will put a house on that lot.

Gerald R. Leach of St. Augustine said he'd planned to build a $300,000 carriage house there for his family, "but they need a garage."

Now, he said, he'll construct a simple block house and rent it to college students.

"It won't be a pretty house," Leach said. "I'll have to build the cheapest thing I can."

His problem: A 30-inch diameter oak with a large root ball sits at the end of a 100-foot driveway that leads to his vacant lot.

The tree completely blocks vehicles from reaching the lot. Only one foot of clearance exists between the root ball and his southern property line.

Though the issue appears simple -- to cut down a tree or not -- disputes over property rights often draw passionate advocates for both sides.

St. Augustine attorney Ellen Avery-Smith of Rogers, Towers, representing Leach and co-owner Marcus Wally, said keeping the tree where it is denies the owners access to their lot.

She said, "That is an unconstitutional taking of property (by) diminution of its value. This is a lot that the city created. Mr. Leach has a (letter from the city) saying it is buildable."

That letter, sent to Leach in June 2001, said the lot is legal and buildable.

"We see this project as being speculative," Williams said. "We believe (the owners) will not make this their home. It's a profit-making venture. They speculated, and they lost."

Planning and Zoning denied Avery-Smith's request for a tree removal permit in October and, on Dec. 13, the City Commission upheld the board's decision.

After that denial, city officials said they expected a lawsuit to be filed in circuit court.

But Leach said no.

"I've already put $12,000 into the property for legal, engineering and surveying fees," he said. "A court case would cost me another $30,000. I probably would win, but it's probably smarter to put that $30,000 toward building a $60,000 house there.

"What else am I going to do?"

He's paid $5,000 a year in taxes on that lot for 10 years, he said. But that could be halved because there's no access to the lot.

Leach purchased the non-conforming lot -- the property outline looks like a pot with a handle or a flag on a flagpole -- for $60,000 about 11 years ago.

Three years ago, the owners sold the lot for $200,000 to a South Florida woman, Barbara Kirk, who wanted to build a house there.

She paid a $25,000 down payment, but, after finding ponds of water there several times, she decided to pull out of the deal.

But Leach blames his neighbor to the west, First United Methodist Church, for the flooding, saying the church's asphalt parking lot blocked the flow of water toward Riberia Street.

He said the city, church and St. Johns River Water Management District all know that.

Pastor Pat Turner-Sharpton of First United said the church has no connection to the tree issue and that Leary's attorney and engineer have approved of the church's plans to work with St. Johns River Water Management District on the drainage problem.

"We don't feel like our parking lot is flooding onto his property," Turner-Sharpton said. "The parking lot has been there five years. We didn't hear from him until this summer."

Saving the tree

Audrey Robbins, whose house sits on Markland Place directly east of the lot, said her daughter drew a "Save Our Tree" color poster and hung it on Robbins' white picket fence.

"That lot's been wet for the 16 years I've lived here," Robbins said Saturday.

Pointing to a next door neighbor's house to the north, she added, "She's been here 50 years and says the lot has always been wet."

Grace Passo, who grew up in that area, said the owners claimed "the tree diminishes the value of that lot. But they were the Realtors who brokered the sale of my current home and both stressed the value of the oak tree on my property."

Williams said the neighborhood was "atwitter" with the tree and its fate.

Zoning Board member John Valdez, who lives next door, made a public statement offering to allow vehicles around the tree onto his property.

Leach, however, dismisses that offer.

"He said he wasn't doing it to be neighborly. He wants to be able to use my driveway," Leach said.

Williams said she grew up in this neighborhood, adding, "It's always been wet and muddy. Surely (the owners) must understand that the lot is low."

Leach said he doesn't need a permit to build a house on the site and, if need be, is prepared to bring in fill dirt by wheelbarrow to raise the property level up to nine feet, which is legally required.

"I'm not going to be their retention pond any more," he said.

The decision

The commission referred to City Code as its legal authority and that says tree removal permits must be approved by the Zoning Board and "shall be issued only for uses that do not cause the removal of protected or preserved trees."

Permit denials may be appealed to the City Commission.

Avery-Smith argued that the code "does not say that the city can outright deny (an) application with no suggestion of how a property owner can legally modify his site or construction plans to minimize the impact on existing trees. (The denial) constitutes an inordinate burden on the owner by greatly reducing the value of his property."

She asked that the commission grant the permit or purchase the property.

Commissioner Nancy Sikes-Kline didn't think the PZB erred: "(They) made the correct decision. I think we have a good case here."

"This was a difficult decision, and I listened to everyone's perspective," Jones said. "But the tree is in the way of a property owner building a home. It's an issue of property rights. We allow people to remove trees to build a home all the time."

However, his motion died for lack of a second.

Sikes-Kline then moved to uphold the PZB, and that passed 4-1, with Jones dissenting.

Leach said late Saturday, "Flagler College cut down trees bigger than (this one) to put in the Ringhaver Center. I don't have the energy to fight them any more. The tree will stay.